EXHIBIT 4.1
EXECUTION COPY
AMENDMENT NO. 1 TO FORBEARANCE AGREEMENT
This AMENDMENT NO. 1 TO FORBEARANCE AGREEMENT (this "Amendment") is entered
into as of April 30, 2002, by and among Xxxxxxxxx Xxxxx Corporation, an Illinois
corporation (the "Company"), and each of the entities identified on the
signature pages hereto as "Noteholders" (collectively, the "Consenting
Holders").
RECITALS:
A. The Company and the Consenting Holders are parties to the
Forbearance Agreement dated as of February 28, 2002 (the "Forbearance
Agreement").
B. The Company and the Consenting Holders desire to modify certain
terms and provisions of the Forbearance Agreement, including, without
limitation, modifying the definition of "Termination Event."
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. DEFINITIONS. All capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the
Forbearance Agreement.
Section 2. AMENDMENTS TO FORBEARANCE AGREEMENT. The Forbearance Agreement
is, as of the Effective Date (as defined below), hereby amended as follows:
2.1 Section 1.2 of the Forbearance Agreement is amended by amending and
restating clauses (b) and (c) of the definition of "Forbearance Default" in
their entirety as follows:
(b) the termination of that certain Forbearance
Agreement dated as of December 31, 2001 (as amended
by Amendment No. 1 thereto dated as of February __,
2002, Amendment No. 2 thereto dated as of March 1,
2002 and Amendment No. 3 thereto dated as of April
30, 2002) among the Company, Holdings, Xxxxxxxxx
Xxxxx (Canada) Corporation, a Canadian corporation,
and the "Agent" and "Lenders" under the Credit
Agreement without the execution and delivery of
another agreement containing terms reasonably
satisfactory to the Consenting Holders (other than
if the result of a breach by the Consenting Holders
of their obligations under Section 2.1 hereof); (c)
[INTENTIONALLY LEFT BLANK];
2.2 Section 1.2 of the Forbearance Agreement is further amended by
amending the definition of "Termination Event" by deleting the reference to
"April 30, 2002" contained therein and substituting "May 31, 2002" therefor.
Section 3. REPRESENTATIONS, WARRANTIES AND CONSENT.
3.1 In consideration of the agreement of the Consenting Holders to the
amendments to the Forbearance Agreement contained herein, the Company hereby
represents and warrants to the Consenting Holders as of the date hereof as
follows:
(a) The execution, delivery and performance of this Amendment by
the Company is within its corporate powers and has been duly authorized by
all necessary corporate action on its part, and this Amendment constitutes
a valid and binding obligation of the Company enforceable against the
Company in accordance with its terms.
(b) The Indenture, the Notes and the Security Documents to which
the Company is a party constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms.
(c) Except for the Existing Default, no Default or Indenture Event
of Default exists.
3.2 Each Consenting Holder hereby represents and warrants severally as
to itself (and not jointly or jointly and severally) to the Company as of the
date hereof that it owns Notes. Concurrently with the execution and delivery of
this Amendment, Ropes & Xxxx, counsel to the Consenting Holders, is providing
the Company a schedule stating the aggregate face amount of Notes held by the
Consenting Holders.
3.3 Each Consenting Holder hereby acknowledges, agrees and consents to
the Company's execution and delivery of Amendment No. 3 to the Forbearance
Agreement among the Company, Holdings, Xxxxxxxxx Xxxxx (Canada) Corporation, a
Canadian corporation, and the "Agent" and "Lenders" under the Credit Agreement,
substantially in the form of EXHIBIT A attached hereto ("Amendment No. 3 to CIT
Forbearance Agreement"), and to the Company's taking all actions expressly
contemplated thereby, including pursuant to Section 1.6 thereof. Each Consenting
Holder also agrees that it shall take all actions reasonably requested by the
Company to further evidence such acknowledgment, agreement and consent,
including the execution and delivery of a supplement to the Indenture.
Section 4. RATIFICATION. Except as expressly modified and superseded by
this Amendment, the terms and provisions of the Forbearance Agreement are
ratified and confirmed and shall continue in full force and effect.
Section 5. CONDITIONS TO EFFECTIVENESS. The Amendment shall become
effective as of the date (the "Effective Date") each of the following conditions
precedent is satisfied:
5.1 The Company and the Consenting Holders shall have executed and
delivered this Amendment.
5.2 Amendment No. 3 to CIT Forbearance Agreement shall have been
executed and delivered.
2
Section 6. MISCELLANEOUS.
6.1 HEADINGS. Section heading in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
6.2 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.
6.3 COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
6.4 CONTINUED EFFECTIVENESS. The terms of the Indenture remain
unchanged, and all such terms shall remain in full force and effect and are
hereby confirmed and ratified.
6.5 PARTIES. This Amendment shall be binding upon, and inure to the
benefit of, the parties hereto and their successors and permitted assigns.
Nothing in this Amendment, express or implied, shall give to any Person, other
than the parties hereto, any benefit or any legal or equitable right, remedy or
claim under this Amendment.
[signature pages follow]
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
Forbearance Agreement to be executed as of the date first set forth above by
their respective duly authorized officers.
COMPANY: XXXXXXXXX XXXXX CORPORATION
ADDRESS: By: /s/ Xxx. X. Xxxxxxxx
-------------------------------------
Name: Xxx. X. Xxxxxxxx
0000 X. Xxxxxxx Xxxxxxxxx Title: President and Chief Operating
Xxxxxxx, XX 00000 Officer
Attention: President
Telephone: 000-000-0000
Facsimile: 000-000-0000
NOTEHOLDERS:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
ADDRESS: By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
MASS MUTUAL Title: Second Vice President and
C/O X.X. XXXXXX & Co. Associate General Counsel
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx
Telephone: 000-000-0000
Fax: 000-000-0000
MASSMUTUAL/XXXXX CBO LLC
By: MassMutual/Xxxxx CBO IM, Inc. as
LLC Manager
ADDRESS: By: /s/ Xxxxxxx XxXxxx
-------------------------------------
Name: Xxxxxxx XxXxxx
Same as above Title: Vice President
MASSMUTUAL HIGH YIELD
PARTNERS II, LLC
By: HYP Management, Inc.
As Managing Member
ADDRESS: By: /s/ Xxxxxxx XxXxxx
-------------------------------------
Name: Xxxxxxx XxXxxx
Same as above Title: Vice President
-5-
SAAR HOLDINGS CDO LIMITED
By: Mass Mutual Life Insurance Co.,
As Collateral Manager
ADDRESS: By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Same as above Title: Second Vice President and
Associate General Counsel
PERSEUS CDO I, LIMITED
By: Mass Mutual Life Insurance Co. as
Portfolio Manager
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
ADDRESS: Name: Xxxxxx X. Xxxx
Title: Second Vice President and
Same as above Associate General Counsel
XXXXXX CDO, LIMITED
By: Mass Mutual Life Insurance Co. as
Collateral Manager
ADDRESS: By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Same as above Title: Second Vice President and
Associate General Counsel
MASSMUTUAL GLOBAL CBO I,
LIMITED
By: Mass Mutual Life Insurance Co.
As Collateral Manager
ADDRESS: By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Same as above Title: Second Vice President and
Associate General Counsel
-0-
XXXXXXXX CLO, LIMITED
By: Mass Mutual Life Insurance Co.
As Collateral Manager
ADDRESS: By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Same as above Title: Second Vice President and
Associate General Counsel
MASSMUTUAL CORPORATE VALUE
PARTNERS LIMITED
By: Mass Mutual Life Insurance Co.
As Investment Manager
ADDRESS: By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Same as above Title: Second Vice President and
Associate General Counsel
-7-
BARCLAYS BANK PLC
ADDRESS: By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Barclays Capital Title: Director
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
-0-
XXXXXXXX XXXXXX XXXXXXX, X.X.X.
ADDRESS: By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
000 X. Xxxxxxxx Xxxxxx Title: Managing Partner
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
-9-
CREDIT SUISSE ASSET MANAGEMENT, LLC
AS AGENT FOR THE ATTACHED LIST OF
THIRTY-THREE BENEFICIAL OWNERS
HOLDING AN AGGREGATE $12,205,500 FACE
AMOUNT XXXXXXXXX XXXXX 10.25% SENIOR
NOTES.
ADDRESS: By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
15th Floor Title: Director
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
-10-
CSAM-SYDNEY CSAM HIGH GRADE BOND FUND
POLICEMEN & FIREMEN RETIRE SYSTEM--DETROIT
DIOCESE OF BUFFALO FIXED
EXIDE CORP MASTER RETIREMENT TR--FIXED
FIARFAX CTY URS - FIXED INCOME PORTFOLIO
CREDIT SUISSE ASSET MANAGEMENT INCOME FD
PUBLIC EMPLOYEES RETIREMENT SYS OF IDAHO
MEDIOLANUM TOP MANAGERS GLOBAL HY FUND
NESTLE USA
CITY OF NEW YORK EMP RET SYS HIGH YIELD
CITY OF NEW YORK POLICE PEN FD HIGH YLD
CITY OF NEW YORK TEACHER'S RETIREMENT SYSTEM
NORTHWESTERN UNIVERSITY
HYP--FONDS (NY)
PE CORPORATION (NY)
CREDIT SUISSE INSTITUTIONAL U.S. CORE
CREDIT SUISSE INSTITUTIONAL HIGH YIELD
NABISCO FOODS
RJR TOBACCO CO--DOMESTIC HIGH YIELD
SAKS FIFTH AVENUE PENSION PLAN
SEI GLOBAL - HIGH YIELD FIXED INCOME
UNITED PARCEL SERVICE RETIREMENT PLAN
MATSUSHITA ELECTRIC EMP. PENSION PLAN
UNIVERSITY OF MARYLAND
NORTHROP GRUMMAN CORP--HY PORTFOLIO
TOYOTA MOTOR EMPLOYEES PENSION
CREDIT SUISSE FIXED INCOME FUND
CS GLOBAL CORE PLUS FIXED INCOME MOTHER
CREDIT SUISSE HIGH YIELD BOND FUND
DIOCESE OF BUFFALO
DIOCESE OF BUFFALO
XXXXXXXXXXXX COUNTY
CS GLOBAL FIXED INCOME FUND
-11-
CSAM HY FOCUS
ADDRESS: By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxxx, 00xx Floor Title: Authorized Signatory
Xxx Xxxx, XX 00000
BEACBO-1
ADDRESS: By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Same as above Title: Authorized Signatory
BEACBO-2
ADDRESS: By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Same as above Title: Authorized Signatory
-12-
DEBT STRATEGIES FUND, INC.
ADDRESS: By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
800 Scudders Mill Road-Section 1B Title: Authorized Signatory
Xxxxxxxxxx, Xxx Xxxxxx 00000
MASTER U.S. HIGH YIELD TRUST
ADDRESS: By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Same as above Title: Authorized Signatory
XXXXXXX XXXXX VARIABLE SERIES
FUND, INC. - XXXXXXX XXXXX
HIGH CURRENT INCOME FUND
ADDRESS: By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Same as above Title: Authorized Signatory
XXXXXXX XXXXX GLOBAL
CURRENCY BOND SERIES - U.S.
HIGH YIELD PORTFOLIO
ADDRESS: By: Xxxxxxx Xxxxx Investment
Managers, L.P. as Investment
Advisor
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Same as above Title: Authorized Signatory
-00-
XXXXXX XXXX XXXXX XXXXX
XXXXXX HIGH YIELD ADVANTAGE FUND
PUTNAM VARIABLE TRUST--XXXXXX VT
HIGH YIELD TRUST
XXXXXX MASTER INCOME TRUST
XXXXXX PREMIER INCOME TRUST
XXXXXX MASTER INTERMEDIATE
INCOME TRUST
XXXXXX DIVERSIFIED INCOME TRUST
XXXXXX FUNDS TRUST--XXXXXX HIGH
YIELD TRUST II
XXXXXX MANAGED HIGH YIELD TRUST
XXXXXX STRATEGIC INCOME FUND
XXXXXX VARIABLE TRUST--XXXXXX VT
DIVERSIFIED INCOME FUND
TRAVELERS SERIES FUND, INC.--XXXXXX
DIVERSIFIED INCOME PORTFOLIO
ADDRESS: By: Xxxxxx Investment Management, LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
XXXXXX HIGH YIELD MANAGED TRUST
XXXXXX HIGH YIELD FIXED IMCOME
FUND, LLC
ADDRESS: By: Xxxxxx Fiduciary Trust Company
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
STRATEGIC GLOBAL FUND--HIGH YIELD
FIXED INCOME (XXXXXX) FUND
XXXXXX WORLD TRUST II--XXXXXX
YIELD BOND FUND
XXXXX & MCLENNAN COMPANIES, INC.
U.S. RETIREMENT FUND
ADDRESS: By: The Xxxxxx Advisory Company, LLC
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
-00-
XXXXXXXX XXXX HUB FUND LTD.
ADDRESS:
By: /s/ Xxxx Xxx
---------------------------------
Name: Xxxx Xxx
c/o Sagamore Hill Capital Title:
0 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
-15-
EXHIBIT A
FORM OF AMENDMENT NO. 3 TO THE CIT FORBEARANCE AGREEMENT
[TO FOLLOW]
